On May 17, 2016, the Equal Employment Opportunity Commission (EEOC) announced new final rules on employer-sponsored wellness programs. These rules apply to employers who offer wellness programs that collect personal health information as part of or separate from their group health plans and describe what they must do to comply with the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). These new rules are in addition to the wellness rules issued by the Department of Labor under the Affordable Care Act in 2013.

Limitations on incentives

The new ADA rule limits the value of incentives offered to employees to encourage them to participate in wellness programs that request personal health information to 30 percent of the cost of self-only coverage. This limitation under the ADA rule applies to both participatory and health-contingent wellness programs.

Similarly, under the GINA rule, incentives provided to employee spouses to encourage participation in wellness programs that request personal health information may not exceed 30 percent of the cost of self-only coverage. The new GINA rule also clarifies that employers are not permitted to provide incentives in exchange for the spouse’s own genetic information, the genetic information of an employee’s child or health information related to an employee’s child.

Other provisions to ensure programs are voluntary

The limitations on incentives are meant to ensure that participation in an employer-sponsored wellness program is, in fact, voluntary. To this end, the regulations establish several other limitations on the overall operation of wellness programs. First, employees may not be required to participate. Second, employees may not be denied coverage, receive limited coverage or be denied the right to participate in any benefits packages as a result of not participating. Third, employers may not retaliate or take any other coercive action against employees who do not participate. Fourth, employers are required to provide written notice describing the use of any medical information collected as a result of participation in a wellness program.

Confidentiality

The rules provide that health information collected through the operation of a wellness program may only be disclosed to the employer in aggregate form. Furthermore, employers are also prohibited from requiring that employees waive confidentiality protections or agree to allow employers to sell the information collected through participation in a wellness program.

Effective date

The provisions of the new rules covering incentives will apply on the first day of the first plan year beginning on or after January 1, 2017. The new notice provision in the ADA rule will also apply on this date. The remaining portions of the rules are set to take effect immediately as clarifications of prior guidance.